Appurtenance to a house or separate real estate?

In stamp duties and inheritance taxes we sometimes come across the concept of 'appurtenance'. This concerns a construction that is an afterthought to a main building. But when does a structure cease to be an afterthought and becomes taxable separately?

Appurtenance

The term "appurtenance" sounds outdated. We come across the term in the oldest tax laws in our country… the laws on stamp duties and inheritance taxes. In the regime of stamp duties, the term is discussed, for example, when purchasing a home with reduced stamp duties (the so-called 'small description'). The reduced rate does not only apply to the house itself, but also to the appurtenances.

For the Flemish tax authorities (Vlabel) there is only one attachment for stamp duties purposes, if:

the appurtenance is an afterthought of the home, and not vice versa;

the appurtenance is part of the residential function (eg garage, garden, ...) and it is not included in an economic activity; and

the appurtenance meets certain requirements in terms of location:

if it concerns land, the land must adjoin the plot on which the house is located; and

if it concerns a garage, the garage must be located in the immediate vicinity of the house.

In the Flemish inheritance tax ('inheritance tax') the concept of the exemption for the surviving partner is reflected. After all, the surviving partner does not have to pay inheritance tax on the part of the family home that he acquires from the first deceased partner and that exemption relates to the family home 'with appurtenances’. And it is precisely on such a situation that the Court of Appeal of Ghent had to rule at the beginning of 2021.

Woodland

Mr X and Mrs Y are married. They have a prenuptial agreement that provides for a separation of property, but during their marriage Y brings a piece of land that she had received from her mother into the marital community. It is about 80 acres. After that donation, Y drafts a will in which she states how the land should be divided among her three children. But when the land is transferred to the community, a clause is also introduced whereby the surviving partner can choose to acquire immovable property upon the death of the other partner. Mrs. dies and Mr. X decides to use this clause to obtain the full ownership of the family home and the usufruct of the land.

However, at the time of taxation there is a discussion about the woodland. According to X, the two original plots – the lot on which the family home is located and the lot that was divided among the children – are to be considered as a whole, which must be regarded as the house with appurtenances. The exemption from inheritance tax therefore applies to the whole estate.

Mediation

First, a mediator is appointed. He determines that next to the lot of the family home there is a woodland. Of the 80 ares, the mediator wants to qualify another 17 ares as appurtenances, but the regional director rejects that proposal.

The regional director looks at the legal division by will, whereby the three pieces of land in the inheritance declaration were each separately estimated at 245.000. The lots are adjacent to another street, and they have a considerable surface area, with a wide street width.
For the regional director this is not a normal appurtenance.

What does the law say?

The dispute is submitted to the Court of Appeal in Ghent, which starts by reviewing the legal provisions. The terms 'home' and ‘appurtenance’ actually originate from stamp duties, where we read: a home is defined as the house or the whole or part of a floor of a building that serves or will serve as housing for a family or one person, with, where appropriate, appurtenances acquired at the same time as the house, the whole or part of a floor. This is further clarified in a Royal Decree of January 11, 1940 (!) : any building or unbuilt immovable property that, by its nature, is considered to be an appurtenance for the purposes of Articles 53, 2° and 57 of the Code of Registration Rights when based on its location, its surface and its value constitute a 'normal appurtenance', depending on the case, either of the house or the floor or the part of the floor obtained under the system of Article 53, 2°, or of the house to be erected on the land purchased under the system of Article 57.

A matter of fact

The court uses Google Earth and Google Street View to assess the concrete situation. The court sees via Google Earth that all lots in question contain trees, which together can be regarded as forest. Via Google Street View, the Court can also see what the mediation officer wrote, namely that part of the forest is closed with a wire fence. Beyond that closure, the forest is accessible from the public road. It therefore comes down to the fact that the whole of the house-with-garden is located within a space that starts at the front of the street and is demarcated at the back (between trees) with a fence. That part immediately connects to the house and that land is used by the residents as a garden.

However, the Court is of the opinion that the forest beyond that closure cannot be regarded as a 'normal addition' to the home. The Court therefore follows the solution of the mediation officer and considers only the approximately 17 acres as a normal appurtenance.

The main reason that the Court considers that land as an appurtenance is that this part of the land has for long formed a unit with the house. The fact that part of it, like the unfenced part, is planted with trees is irrelevant in the concrete circumstances.

The Court further considers that the surface area (17.08 ares) is not unreasonably large when viewed as a whole. It acknowledges that the resale value of the land is significant, but that has to do with the fact that it is a residential area. That in itself does not affect the fact that the area concerned was used as a garden.

Conclusion?

As mentioned, it is always a matter of fact. We deduce from this interesting judgment of the Court of Appeal of Ghent that the value of the appurtenance, the fact that it concerns separated cadastral parcels or what is on the lots, is relevant but not decisive. We also deduce that it is much more important that the appurtenance forms an actual whole with the family home. A closure can then be a very good indicator.